In computing period of 60/90 days for default bail u/s.167(2) of CrPC, first day of remand is to be included

The applicability of the aforesaid principle and also of the provision contained in Section 9 of the General Clauses Act would be of some semblance/relevance, where the law/statute prescribes a limitation and in terms of Section 9, if in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other days or any other period of time, to use the word ‘from’ and ‘for the purpose of including the last in a series of days or any other period of time to use the word ‘to’. The principle would be attracted when a period is delimited by a Statute or Rule, which has both a beginning and an end; the word ‘from’ indicate the beginning and then the opening day is to be excluded and then the last day is included by use of words ‘to’. The requisite form for applicability of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when the period is marked by terminus quo and terminus ad quem.

    If this principle is the underlining principle for applicability of Section 9 of the General Clauses Act, 1897, perusal of Section 167 (2) would reveal that there is no starting point or an end point. In the scheme of the Code, as has been elaborated above, the provisions contained in sub-section (1) of Section 167 runs in continuation of sub-section (2). Production of the accused before the Magistrate is a sequel of his arrest by the police in exercise of their power and the mandate of the police, and at the same time, a right of the accused to be produced before the Magistrate within 24 hours. The day on which the accused is brought on remand before the Magistrate, sub-section (2) of Section 167 empowers the Magistrate to authorize the detention with the police either by continuing it or remanding him to Magisterial custody. There cannot be a pause/break between the two processes. There is no de-limitation conceptualized in Section 167 nor can it be befitted into a period of limitation ‘from’ and ‘to’ as there is no limitation for completion of investigation and filing of the charge-sheet. The production before the Magistrate is a process in continuation of his arrest by the police and the Magistrate will authorize his detention for not more than 15 days in the whole but if he is satisfied that sufficient ground exist, he may authorise his detention beyond 15 days otherwise than in custody of police. There is no starting point or end point for the authorities to complete their action but if the investigation is not completed and charge-sheet not filed within 60 days or 90 days, a right accrues to the accused to be released on bail.

    The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue. This is the precise reason why the General clauses Act cannot be made applicable to sub-section (2) of Section 167 and the submission of Mr.Singh to the effect that the first day of remand will have to be excluded, would result into a break in the continuity of the custody of the accused which begin on his arrest and which could have continued till conclusion of investigation but for insertion of proviso to subsection (2) of Section 167.

Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence

In fact learned Counsel for parties also have mostly relied upon the evidence of the prosecutrix only either to demonstrate that the offences have not been committed or committed. Law on the perspective to be adopted in such case can be found in following two judgments of the Hon. Apex Court. In Narender Kumar Vs. State (NCT of Delhi), AIR 2012 SC 2281 : (2012) CriLJ 3033 : (2012) 3 JCC 1888 : (2012) 5 SCALE 657 : (2012) 7 SCC 171 : (2012) AIRSCW 3391 : (2012) 4 Supreme 59 , Hon. Apex Court points out the settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. However, where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration. Hon. Apex Court states that even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Hon. Apex Court in matter before it observes that the facts and circumstances therein made it crystal clear that if the evidence of the prosecutrix was read and considered in totality of the circumstances along with the other evidence on record, in which the offence was alleged to have been committed, her deposition did not inspire confidence. The prosecution had not disclosed the true genesis of the crime. It therefore, found the appellant entitled to the benefit of doubt.[Para No.15]